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6. Claims Anticipated

  1. Claims 83, 86, and 88 were anticipated in view of the Phelps patent.
    1. During the 1930's IBM experimented with the use of electronic counting devices as high-speed substitutes for the mechanical adding wheels used in their commercial products. IBM engineers developed and built and electronic multiplier and tests were successfully carried out at its rated punching speed in November 1942.
    2. The electronic multiplying apparatus developed and constructed at IBM was later described in detail in a patent application filed by an IBM engineer, Phelps, on September 27, 1945, now U.S. Patent No. 2,624,507. Although the Phelps patent did not issue until January 6, 1953, the same disclosure by Phelps issued earlier in the form of the equivalent British Patent No. 616,962 on January 28, 1949.
    3. The IBM multiplier consisted of a mechanical card feeding, reading and punching unit electrically coupled to a separate electronic multiplying unit. The only mechanical part of the IBM electronic multiplier was that necessary to read and punch the cards, the arithmetic operations of the multiplication being performed at electronic speeds.
    4. Factors punched on an IBM card were read in the reading unit, the multiplication was performed in the electronic computing unit, and the results was then punched on the same card as it passed through the punching station. The electronic multiplier was pulse-responsive and operated under the control of a first timer at a rate of 8,000 pulses per second while the peripheral card handling equipment was operated by a second timer at the rate of 23 pulses per second.
    5. The Patent Office rejected claims of the ENIAC patent as "obviously fully met" by the British Phelps disclosure. Examiner Pokotilow advised Eckert and Mauchly's attorney, William D. Hall, that the Phelps disclosure was "very pertinent to the claims in the ENIAC application." The Phelps patent was overcome as prior art only after the filing by Eckert and Mauchly of an affidavit representing that the invention was made by them before the filing date of the IBM application for the Phelps patent.
    6. Notwithstanding the affidavit which "overcame" the application filing date of the Phelps patent as prior art in the Patent Office, Phelps had in fact made the invention of the rejected ENIAC claims before the ENIAC project work had even begun, and such invention was not thereafter abandoned, suppressed or concealed.
    7. Claims 83, 86, and 88, shown to be readable in all material respects on the prior Phelps work, are therefore barred from patentability by the provisions of 35 U.S.C. §§102(g) and 103.

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